Today, Federal District Court Judge Henry E. Hudson of the Eastern District of Virginia issued an Order that will allow the State of Virginia to proceed with its lawsuit against Obamacare. In a 36 page opinion, the Court found that Virginia’s Complaint against the federal government had sufficient merit, as we lawyers’ say, to state a cause of action.
In March, the State of Virginia filed a law suit against the federal government claiming that Obamacare’s mandate that we all must purchase insurance, was unconstitutional, in that, among other things, it was in direct conflict with a Virginia law that prohibited any mandate that all buy insurance.
The federal government asked that the suit be dismissed claiming that Obamacare was a valid exercise of Congress’s power to regulate interstate commerce, as well as Congress’s power to tax. For more background on the government’s argument you may want to review this post.
As to the interstate commerce argument, the Court noted that:
Never before has the Commerce Clause and associated Necessary and Proper Clause been extended this far. [See: page 25 of the above link].
The court next addressed the power to tax argument, but began that discussion with the following:
Contrary to preenactment representations by the Executive and Legislative branches, the [government] now argues alternatively that [the mandate that all buy insurance] is a product of the government’s power to tax for the general welfare. [See: page 25]
The Court noted that because Congress, in the law itself, called this a “penalty”, not a tax , the power to impose a penalty must be in aid of an enumerated power. In other words, some other section of the Constitution must be called upon to support it.
In conclusion, the court said,
…all [arguments] seem to distill to the single question of whether or not Congress has the power to regulate – and tax – a citizen’s decision not to participate in interstate commerce. Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue. No reported decision from any federal appellate court has extended the Commerce Clause or the Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce. [See: page 31]
Cutting through everything else we hear about Obamacare, that is the ultimate question. Exactly how far reaching is the government’s power to demand that it’s citizens engage in conduct that the citizens may not otherwise do?